The family court said it would not accept the legal definitions for rape, sexual assault and consent used by Britain’s criminal courts, in a judgment published on 2nd December, 2022.
The judges held that the current legal definitions had no place in the family courts, rejecting the notion that the courts should use criminal law definitions for each phenomenon.
The two mothers who brought the appeals said a failure to implement the current definitions was a breach of their human rights and that the lack of consistency led to procedural unfairness, and by implication procedural irregularity.
One mother lost her appeal, while the other mother’s appeal was allowed.
This case highlights the very real problems with having different standards of proof and definitions in two different court systems, for the same crimes. This should never be the case, and it is a terrible indictment of our shoddy justice system.
LexisNexis has a very good summary of the case, which can be accessed here for subscribers, while the judgment can be read for free here.
Below is an extract from LexisNexis’ summary:
“The Family Division considered two appeals brought by appellant mothers who had made allegations of domestic abuse, rape and sexual assault in proceedings against the respondent fathers.
The court rejected the need to apply consistent definitions of rape, sexual assault, and consent on the basis that a framework would be too narrow a prism through which to view and investigate the true nature of an adult relationship.
Further, the definitions used in the criminal justice system should have no place in the Family Court, instead the Family Procedure Rules 2010: Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm set out a specific procedural framework for managing and determining allegations of domestic abuse within private law children proceedings.
The court further ruled that that decision was not in breach of articles 6, 8 and 14 of the European Convention on Human Rights on the basis that inconsistency was a feature of the fact-finding process.
It also set out the approach that the court should take to a complainant’s sexual history when determining allegations of rape or sexual assault and ruled that a list of common rape myths about sexual assault stereotypes which a family judge might give himself should not be made as it would run the risk of creating a rigid framework to which adherence would be given.”